Appeals from the Superior Court of the District of Columbia (Hon. John H. Suda, Trial Judge)

Argued September 3, 1998

Concurring opinion by Associate Judge SCHWELB at p.

KING, Senior Judge: Charged with armed first-degree murder and assorted weapons offenses, John P. Daley was convicted on August 26, 1994, following a jury trial of one count each of armed voluntary manslaughter, possession of a firearm during a crime of violence, and carrying a pistol without a license.*fn2 He argues on appeal that the trial court abused its discretion by denying his motions for a "come-up" order, a continuance, and a bench warrant in his attempts to secure the presence of prospective defense witnesses, who had not appeared in court even though they had been subpoenaed. Daley claims that denial of these motions was an abuse of the trial court's discretion, and amounted to a denial of his Sixth Amendment right to compulsory process. We hold that the trial court did abuse its discretion, and accordingly we reverse Daley's convictions. *fn3

On the afternoon of June 3, 1993, appellant Daley, a barber at Walter Reed Army Medical Center, shot and killed his long-time acquaintance George Younger during a dispute over ownership of a car. Claiming self-defense, Daley testified that on that day Younger and Bobby Adams approached him in his barbershop and that, after heated Discussion in a nearby hallway, Younger made a motion as if reaching for a gun. Daley claimed he heard a sound like a gunshot as he turned and ran back toward the doorway of the barbershop. When he reached the doorway, a friend, Specialist Gavin Brown, handed Daley a.380 pistol; Daley then, without aiming, fired up to seven shots in Younger's direction.

In contrast, government witnesses testified that Daley had been the aggressor during the shooting, that Brown did not hand Daley the pistol he used to shoot Younger, that and that Daley had shot the wounded Younger in the head at close range as he lay on the floor. A medical examiner testified that Younger was shot four times, including once in the back and once in the head. No gun was found on or near Younger's body at the scene, nor was the.380 pistol which Daley used ever recovered.

On August 24, 1994, the final day of trial testimony, Daley sought to call as a witness James Johnson, a barber who worked with Daley and who was present on the day of the shooting.*fn4 According to an affidavit prepared several months later under circumstances discussed below, Johnson would testify that: he heard Younger threaten Daley just before the shooting; he saw Younger reach into his waistband for what Johnson thought was a gun; Johnson knew Brown owned a pistol; and Johnson saw Brown hand his pistol to Daley. Johnson had been subpoenaed and had appeared earlier in the case, but was not present in court on August 24. It was learned that Johnson had been arrested several days earlier on an unrelated charge, and counsel for Daley did not become aware of the arrest until the morning of August 24, when he was told that Johnson was in the custody of United States Marshals in the cellblock of the Superior Court.

Daley's counsel first asked the court for a "come-up" order, and then for a "brief extension" in order to secure Johnson's presence. Counsel stated that he could proffer to the court what testimony to expect, that Johnson was an "eyewitness" and "one of the barbers [who]witnessed the facts of this case." The trial court denied both motions without hearing the proffer, stating that the court was "going forward and finishing this case now."*fn5 Daley called only one more witness and then rested. Closing arguments and instructions occurred the next morning, and the jury reached its verdict the day after that.

On appeal, Daley argues that denial of these motions was an abuse of discretion by the trial court, and that not allowing Daley to call Johnson as a witness amounted to a denial of his Sixth Amendment right to compulsory process. Denial of a request for a continuance and refusal to compel the appearance of a witness are reviewed for abuse of discretion. Edelen v. United States, 627 A. 2d 968, 972 (D. C. 1993); see also Howard v. United States, 656 A. 2d 1106, 1117-18 (D. C. 1995). In exercising its discretion, the trial court must ensure that its actions are not "so arbitrary as to deny [the defendant]due process." O'Connor v. United States, 399 A. 2d 21, 28 (D. C. 1979) (citing Ungar v. Sarafite, 376 U. S. 575, 589 (1964)).

Relevant factors in determining whether there has been an abuse of discretion include the reasons for the request for a continuance, the prejudice resulting from its denial, the party's diligence in seeking relief, any lack of good faith, and prejudice to the opposing party. Hairston v. Gennet, 501 A. 2d 1265, 1268 (D. C. 1985); Joyner v. Jonathan Woodner Co., 479 A. 2d 308, 312 (D. C. 1984); Harris v. Akindulureni, 342 A. 2d 684, 686-87 (D. C. 1975). Specifically, the party seeking a continuance to secure a witness

"must establish (1) who the missing witness is, (2) what the witness' testimony would be, (3) the relevance and competence of that testimony, (4) that the witness could probably be obtained if the continuance were granted, and (5) that the party seeking the continuance has exercised due diligence in trying to locate the witness." Bedney v. United States, 684 A. 2d 759, 766 (D. C. 1996) (citing Kimes v. United States, 569 A. 2d 104, 114 (D. C. 1989)).

Even if these standards are met, a continuance is not necessarily mandated --the continuance must be "'reasonably necessary for a just determination of the cause.'" Id. (quoting O'Connor, supra, 399 A. 2d at 28).

Applying these factors, we are satisfied from this record that Daley established entitlement to at least a brief continuance to secure the presence of Johnson as a witness. Accordingly, the trial court's denial of that request was an erroneous exercise of discretion. See Johnson v. United States, 398 A. 2d 354 (D. C. 1979). For example, Daley told the court that Johnson was a former co-worker and an eyewitness to the shooting. This was a clear indication to the court not only of the missing witness' identity, but also of the subject matter of Johnson's proposed testimony, and of that testimony's relevance and competence. Daley attempted to proffer to the court what he expected Johnson's testimony would be, but the trial Judge did not permit him to do so. Given that Johnson was apparently in custody within the Superior Court building itself, it is likely that his presence could have been obtained with minimal delay to the proceedings if the continuance had been granted. Finally, the record shows that Daley had subpoenaed Johnson to appear, and had been in contact with him shortly before trial ...

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